United States v. Bertin Vasquez-Martinez

MEMORANDUM

Bertin Vasquez-Martinez was convicted of conspiracy to distribute marijuana, 21 U.S.C. § 846 , possession with intent to distribute marijuana, 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(vii), and possession with intent to distribute marijuana on board a vessel, 46 U.S.C. § 70503 (a). He appeals his convictions and sentences, alleging error in exclusion of evidence, incorrect jury instructions, insufficient evidence, and unreasonable sentencing disparity. We have jurisdiction under 28 U.S.C. § 1291 , and affirm.

1. The district court erred in excluding a United States Naval Observatory 2012 “Rise and Set for the Moon” table from evidence. Because a Border Patrol Agent testified that moonlight enabled him to clearly view a group of men unloading marijuana from a boat, the table was relevant impeachment material. The data in the table was reliable, see Fed.R.Evid. 201(b), and courts routinely take judicial notice of such data, see United States v. Bervaldi, 226 F.3d 1256 , 1266 n. 9 (11th Cir.2000); United States v. Wilson, 451 F.2d 209, 214 (5th Cir.1971); Oliver v. Hallett Constr. Co., 421 F.2d 365 , 367 (8th Cir.1970).

2. To determine “whether evidence erroneously excluded…